Advocates calling for reform of forfeiture laws are hopeful, if not confident, substantial changes will emerge from the upcoming session of the Texas Legislature.
A slate of bills dealing with how agencies are able to seize property or assets of individuals not convicted of criminal offenses were pre-filed ahead of the opening of the 2017 session on Jan. 10. And there is an increasing awareness comprehensive reform is needed, according to Derek Cohen of the Texas Public Policy Foundation, which argues forcefully for changes on both property and human rights grounds.
“If you look at the tenor of the debate, other than individual groups, not a single person defends civil forfeiture on principle,” Cohen told Texas Business Daily.
One bill filed, SB380, will effectively eliminate civil asset forfeiture -- that is taking property of individuals not convicted of a crime -- except under narrow, extenuating circumstances. That is close to the foundation’s position.
Others, while not requiring a conviction, do raise the procedural standards needed before assets or property are seized. Under the civil forfeiture law, police and prosecutors can take property without charging an individual with a crime. Those facing forfeiture proceedings have few legal protections, and the decision to take the property is made on preponderance of evidence.
Information surrounding the process, and the value of the assets seized, is largely unknown as agencies are not required to publicly post any individual numbers or cases, Cohen said. A briefing document for legislators, drawn up by his foundation, said a total value of $143 million was seized, but that is from 2012-13.
“Texas is one of the states that offers the fewest protections and more and more states every day are improving their laws,” Cohen said, adding that Ohio Gov. John Kasich signed a reform package for his state this week.
The legislature, in 2007 and 2009, did enact some reforms, but they only tackled the “horrible, horrible abuses,” such as road side confiscations, said Cohen, a deputy director at the foundation’s Center for Effective Justice.
Cohen said he “feels pretty good” that a strong, effective law will pass this session.
In its recommendations to the legislature, the foundation calls for elimination of civil asset forfeiture by requiring a conviction.
But, the foundation argues, judges should be allowed to declare property abandoned if the government agency has done proper due diligence trying to locate the owner. This would come under the criminal forfeiture law as it would bypass the conviction requirement.
The state should have to prove via clear and convincing evidence that the owner knew their property was being used for illegal activities. Forfeited cash and property should come under the control of the jurisdiction’s elected body, for example the city council or commissioner’s court. And, at the very least, if there is no substantial reform this session, agencies should be made to publicly report on individual forfeiture proceedings, including the value of the property and whether a criminal conviction was obtained.
Many of the forfeiture cases involve small amount, Cohen said, and therefore largely fly through the process under the radar.
“These are not amounts that we would think as consequential, many of them say $800, but they may have real consequences for the individual,” Cohen said.